Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No. S – 126 of 2006

Date of hearing: 20-09-2021

Date of decision: 20-09-2021

Mr. Ubedullah Malano Advocate for the Applicant.

Mr. Bakhshan Khan Mahar Advocate Respondents.

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J U D G M E N T

Muhammad Junaid Ghaffar, J. – Through this Civil Revision, the Applicant has impugned judgment dated 24.8.2006 passed by the 2^nd Additional District & Sessions, Judge, Khairpur, in Civil Appeal No.02 of 2005, whereby the judgment passed by the Senior Civil Judge, Gambat, in F.C. Suit No.01 of 1998 dated 27.11.2004, through which the Suit of Respondents was decreed, has been maintained and the Appeal has been dismissed.

2. Heard learned Counsel for the parties and perused the record.

3. It appears that Respondent Allah Obhayo (since deceased) filed a Suit for declaration, possession and Mesne Profit in respect of the Suit property that it was originally owned by her mother Mst. Wasandi to the extent of her share; she was in possession and it was being cultivated by him; that on 31.3.1980 she gifted her above share to him by way of an oral statement before concerned Mukhtiarkar, Mir Wah; that revenue record was accordingly mutated; that Defendants / Applicants being co-sharers and in joint possession tried to encroach upon his land; hence, compelled to file the Suit. Evidence was led and the Suit was decreed, whereas, the Appeal also failed.

4. The only point which has been agitated before this Court is that though reliance was placed on a registered gift deed; but it was never annexed with the plaint; nor, produced in the evidence. In support learned Counsel took pains to refer to the last page of the plaint to argue that in the list of documents filed it is stated that true copy of gift is relied upon. However, that may be so, but appears to be a typographical mistake, as apparently, in Para 7 of the plaint it has been stated that the gift was oral and was recorded before the concerned official of the revenue department on the basis of which the revenue record was mutated in favor of the Respondent / Plaintiff. The Respondent / Plaintiff produced the entire documentary evidence, including the revenue entries as Exh-48; which showed that Mst Wasandi gifted her share in favor of the Respondent on the basis of which the entry was then mutated in his favor. It has also come on record that not only this, the Applicants No. 4 to 6 / Defendant No. 3 to 5 namely Hamza Ali, Shah Muhammad and Ghulam Sarwar had even compromised the matter with the Respondent / Plaintiff, and also came forward to substantiate the same. It is a matter of record that the Applicants had neither challenged the gift in favor of the Respondent / Plaintiff; nor the revenue entries in his favor. They in fact never even challenged the ownership of Mst Wasandi, the mother of the Respondent / Plaintiff. This all it notwithstanding the fact that even in its written statement an effort was made to lay before the Court a claim in set-off; but even while doing so, the gift and the revenue entry in favor of the Respondent / Plaintiff was not challenged, and the claim of set-off was only confined to seeking partition and a separate possession, which even they could not prove. Lastly, in filing the written statement it has been stated that Respondent / Plaintiff and Defendants No. 2 to 6 were in collusion; however, surprisingly, the present Revision has been filed by joining them as Applicants, which has gone unexplained. If that was the case, then these Defendants ought to have been the respondents in this matter as they could not sail in the same boat, once allegation of collusion is attributed. It also appears that in fact the Suit to the extent of these Defendants was decreed by way of compromise. It has also come on record through the evidence of Applicants witness Muhammad Soomar (DW-2-Exh60) that after partition of land between Jhando and Qaim Din, four anna share devolved upon Mst. Wasandi. He has further admitted that share of Mst. Wasandi is in possession of Defendants Jhando (Applicant No.2) and Qaim Din.

5. After having perused the material on record and the evidence led by the Applicants, I do not see any misreading or non-reading of the material or evidence on record, whereas, no case of upsetting the concurrent findings of the two Courts below is made out; hence, in this limited jurisdiction vested in this Court, no indulgence is warranted; accordingly, this Revision Application being misconceived, is hereby dismissed.

J U D G E

Abdul Basit